[2022] KEHC 12601 (KLR)

Kamia v B.M Mung’ata & Company Advocates (Miscellaneous Application E089 of 2021) [2022] KEHC 12601 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12601 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E089 of 2021

MW Muigai, J

July 21, 2022

Between

John Muthini Kamia

Applicant

and

B.M Mung’ata & Company Advocates

Respondent

Ruling

1. By a Notice of Motion dated 9th December 2021 and filed under Certificate of Urgency, the Applicant seeks the following orders:-1. That the application be certified urgent and heard ex parte in the first instance.2. That there be stay of execution of the Ruling and all consequential orders in Machakos High Court Miscellaneous Application No.E089 of 2021: B.M Mungata & Company Advocates versus John Muthini Kamia pending the hearing and determination of this application.3. That this Court enlarge the time within which to file a reference against the decision of the taxing officer delivered on 10th November, 2021 in Machakos High Court Miscellaneous Application No.E089 of 2021: B.M Mungata & Company Advocates versus John Muthini Kamia.4. That the draft Reference attached herewith be deemed as properly filed subject to payment of the requisite court fees.5. That the costs of this application be borne by the Respondent.

2. The application is supported by the affidavit of the Applicant sworn on the same day. He averred that the taxing officer awarded the Respondent costs of Kshs. 672,800/-. According to the deponent, he has good grounds for opposing the taxing officer decision by virtue of having settled the agreed legal fees hence if the decision of the taxing officer is executed before hearing and determination of the application, there will be a miscarriage of justice.

3. According to the deponent, he was indisposed as he was ailing during the period but was able to travel to Machakos from Kwale on 7th December, 2021 for purposes of execution of the Application herein. He averred that the application had been brought without unreasonable delay. According to the deponent, it is in the interest of justice that the orders sought herein do issue to allow him argue the Reference on merit.

Replying Affidavit Filed On 19/01/2022 4. In opposition to the application, Philip Musya, the Respondent’s Advocate averred that the Applicant’s application is frivolous, vexatious, is an abuse of the court process, lacks merit and the same ought to be dismissed on the very outset.

5. According to the advocate, the Applicant failed and/or neglected to file his Reference before 24th November, 2021 from the date of the taxing officer ruling delivered on 10th November, 2021. He urged the court to take judicial notice of the medical certificate dated 30th November, 2021 attached by the Applicant as annexture ‘JMK2’ from Diani Beach Hospital that was prepared 20 days later from the date of the Taxing Officer’s Ruling. According to the advocate, there are no records to give an explanation of what transpired between 10th November and 30th November, 2021. He averred that filing this application is only an afterthought that ought not to be entertained by this court.

6. He averred that the Draft Reference does not disclose any good grounds for challenging the decision of the taxing officer as the same reasons were given before the taxing officer by the Applicant in his replying affidavit sworn on 5th August, 2021. According to the advocate, the legal fees alleged to have been paid were in relation to Machakos CMCC Succession Cause No. 28 of 2019-In the Estate of the late Joseph Munyao Kombo where a fee note dated 2. 10. 2019 (‘PM1’) was done for the Applicant to deposit a sum of Kshs.250,000/-.

7. According to the advocate, the Respondent initiated the Advocate-Client Bill of Costs in relation to the receipt of instructions to render professional services to the Applicant in relation to preparation and stamping of an agreement known as Mavoko Town Block 3/3183 worth Kshs. 37,000,000/- as between the Applicant and Kenya National Union of Teachers. The advocate asserted that the reference is a mockery to this court and it should be dismissed as it is devoid of merit.

Applicant’s Submissions 8. As to whether the court should enlarge the time to file the Reference, it is submitted that the court should consider the length of the delay and the reasons for the delay to file as observed by the court in County Government of Tana River vs. Miller & Company Advocates [2021]eKLR. According to the Applicant, the period to file the reference lapsed and the present application was not filed less than 14 days later. It is submitted that the Applicant was unable to issue instructions to file the reference since he was unwell and resided in Kwale. Reliance was also placed on the case of Aviation Cargo Support Limited vs. St. Mark Freight Services Limited (2014) eKLR.

9. The Applicant urged the court to exercise its discretion in his favour and allow for the immediate filing of the reference. According to the Applicant, the court should grant stay pending the filing, hearing and determination of the Reference to allow parties ventilate the Reference.

Respondent’s Submissions 10. On behalf of the Respondent, it is submitted that the period for filing a Reference is 14 days from the time when the reasons for the ruling by the taxing officer are given. Reliance was placed on the case of Singh Gitau Advocates vs. City Finance Bank Limited [2021] eKLR where the case of Nyakundi & Company Advocates vs. Kenyatta National Hospital Board [2005] eKLR and in National Oil Corporation Limited vs. Real Energy Limited &another [2016]eKLR were referred to.

11. Regarding whether the Draft Reference raised any good grounds/points to warrant its exercise of discretion, it is submitted that they are not arguable and do not raise any reasons for challenging the decision of the taxing officer. According to the Respondent, it is not in dispute that there was a retainer between the Applicant and the Respondent in respect of the land transaction that required the Respondent to exercise professionalism, diligence and take the Applicants interest with utmost care in preparation, stamping and execution of the agreement. It is submitted that the land transaction is separate and distinct from the services rendered in preparation of the agreement.

12. It is submitted that there was no error of principle which warrant this court to interfere with the taxing officer’s decision. Reliance was placed on the case of Republic vs. Ministry of Agriculture & 20 Others Exparte Muchiri W’ Njuguna [2006] eKLR which considered the case of Singh Gitau Advocates vs. The City Finance Bank Limited (supra).

13. The Respondent urged this Court to dismiss the application with costs.

Determination 14. I have considered the application, affidavits in support and in opposition to and submissions filed.

15. The two issues that emerge for determination are:

Whether Or Not To Enlarge Time For Filing The Reference 16. The procedure guiding the objection to the decision of a taxing officer is provided for under Paragraph 11 of the Advocates Remuneration Order. The provision provides for Objection to the decision on taxation that:-1. Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects2. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.3. Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.4. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.

17. The Applicant has not filed a Reference against the decision of the taxing officer delivered on 10th November, 2021 but is seeking extension of time to file the Reference.

18. According to Applicant, illness led to him not filing a reference within 14 days from the date of the ruling of the taxing officer. The Applicant asserts that the grounds raised in the Draft Reference are triable issues by virtue of having settled the agreed legal fees.

19. Paragraph 11(1) requires a notice of objection to the taxing officer decision to be filed within 14 days from the date of the ruling by an aggrieved party. See Nyamogo & Nyamogo vs. Kenya Bus Services Nairobi Milimani HCMA No. 587 of 2004 and Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limited (2) [2006] 1 EA 5.

20. The Cambridge Dictionary has defined ‘within’ as ‘inside or not further than an area or period of time’ while the Merriam Webster defines within as before the end of; not beyond the quantity, degree, or limitations of; in or into the scope or sphere of; in or into the range of; to the inside of.

21. It follows therefore that the notice of objection and/or the Reference cannot be filed beyond 14 days from the date of the ruling of the taxing and upon the receipt of the reasons of the decision by the taxing officer respectively. According to Odunga J. in Evans Thiga Gaturu, Advocate vs. Kenya Commercial Bank Limited [2012] eKLR to file the reference more than 14 days after the delivery of the same would render the reference incompetent.

22. A party is therefore required to seek extension of time under Paragraph 11(4) (supra) which has conferred this court with the power to enlarge the time for lodging the Reference. See Muriu Mungai & Co. Advocates vs. New Kenya Co-Operative Creameries Ltd Nairobi(Milimani) HCMC No. 692 of 2007.

23. Odunga J. in the case of Evans Thiga Gaturu, Advocate vs. Kenya Commercial Bank Limited(supra) stated:“….If the client considered the said decision to contain the reasons, he could file the reference within 14 days from the date thereof. If, on the other hand, he was of the view that there were no reasons contained in the decision, he could request for the same in writing, in which case, he would be bound to wait for the same. If, however, at a later stage he decided to prefer the reference notwithstanding the failure by the Taxing Master, after the lapse of the 14 day period, it is my view that he would be bound to apply for extension of time under paragraph 11(4) of the Remuneration Order,..”

24. The Court’s power under subparagraph (4) is discretionary. The principles to be considered in exercising the discretion whether or not to enlarge time are well set out by the Supreme Court in the case of County Executive of Kisumu vs. County Government of Kisumu and 8 Others [2017] eKLR held:-“It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat’s case to which all the parties herein have relied upon. The Court delineated the following as:“the under-lying principles that a Court should consider in exercise of such discretion:1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court3. Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5. Whether there will be any prejudice suffered by the respondents if the extension is granted6. Whether the application has been brought without undue delay; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

25. According to the Applicant, the Medical Certificate from Diani Beach Hospital dated 30th November, 2021 shows that he was suffering from Type II DM/Cardiomyopathy. The Applicant inability to file the Reference within 14 days is pegged on his illness.

26. According to the Respondent, the Applicant has not given any explanation why he could not file the Reference between 10th November, 2021 and 30th November, 2021 since the attached medical report is dated 30th November, 2021.

27. The Court of Appeal in Kenya Ports Authority vs. Silas Obengele Civil Application No. Nai. 297 of 2004 [2006] 2 KLR 112 stated that:“Whereas it is now settled that whenever there is a delay, even for one day, there must be some explanation for it otherwise an extension may not be granted where there was material before the single judge from which he could and did conclude that the delay or the periods of delay…the full bench will not interfere”

28. Odek JA. in George Kiptabut Lelei & another vs. Fanikiwa Limited[2019] eKLR stated:“In arriving at my decision, I reiterate that a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favorably exercised…”

29. The Applicant is silent in his affidavit or submissions on the events of between 10th November, 2021 and 30th November. Despite furnishing the court with a medical Certificate, the Applicant has not mentioned the dates when he got ill. The medical certificate is silent on the specific date the Applicant got ill. If we go by the Medical certificate date, then it can be concluded that the Applicant got ill on 30th November, 2021 and not between 10th November, 2021 and 30th November, 2021. The period after the delivery of the taxing officer ruling and 30th November, 2021 has not been explained by the Applicant.

30. However, I note that the Medical Certificate gave the Applicant a bed rest of one week. The Applicant has averred that he travelled from Kwale to Machakos on 7th December, 2021 for purposes of execution of the application. According to the Applicant it is the illness that led to the delay in filing the reference. The period between 30th November, 2021 and the date when the application seeking extension of time was filed has been explained by the Applicant. The courts view is that the delay of 34 days from the date of ruling of the taxing officer has to some extent been explained by the Applicant. The delay is not one that is inordinate to lock out an aggrieved Applicant from being heard by the court.

31. Mohammed J. in George Kagima Kariuki & 2 Others V George M. Gichimu & 2 Others [2014] eKLR clarified the issue of delay. It was his view that:-“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.”

32. G. B. M. Kariuki JA. in Aviation Cargo Support Limited vs. St. Mark Freight Services Limited [2014] eKLR, stated:“The order whether or not to grant extension of time or leave to file and serve record of appeal out of time is discretionary. Such discretion is exercised judicially with a view to doing justice. Each case depends on its own merit. For the Court to exercise its discretion in favour of an applicant, the latter must demonstrate to the Court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the applicant must give plausible explanation to the satisfaction of the Court why it occurred and what steps the applicant took to ensure that it came to Court as soon as was practicable. In the normal vissiccitudes of life, deadlines will be missed even by those who are knowledgeable and zealous. The Courts are not blind to this fact. When this happens, the reason why it occurred should be explained satisfactorily including the steps taken to ensure compliance with the law by coming to Court to seek extension of time or leave to file out of time.

33. The Applicant is reasonably apprehensive that the Respondent will execute the ruling of the taxing officer. According to the Applicant, he will be greatly prejudiced if the application is not heard and determined urgently.

34. The Court will allow the Applicant to have his day in Court to ventilate his claim against the Taxing Officer Ruling and enlarge the time to file the Reference.

35. A Reference is akin to a Memorandum of Appeal. In RWW vs. EKW [2019] where Ongeri J. held that; -“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgement. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

36. This Court is enjoined under Article 159 (2) (d) of the Constitution to dispense justice without undue regard to procedural technicalities. In the same vein, under Article 50 of the Constitution a party has to be accorded a right to fair hearing.

37. According to the Applicant, he has paid the agreed legal fees in this matter and not in the alleged succession cause by the Respondent. He considered the taxing officer to have erred in fact by finding that he had not attached the supporting documents. The Court’s view is that in the interest of justice, the dispute is one that should proceed to reference so that the issue can be ventilated by the parties.

38. The Court finds that the Respondent will not suffer any prejudice that cannot be compensated with costs.

Dispositiona.In the premises, the court shall allow the Applicant’s Notice of Motion dated 9th December, 2021 by enlarging the time to file the Reference.b.The Reference out of time shall be filed within 14 days from the date of this ruling.c.There be a stay of execution of the Certificate of Taxation pending hearing and determination of the reference.d.Costs of the application to the Respondent.

DELIVERED DATED & SIGNED IN OPEN COURT IN MACHAKOS ON 21ST JULY 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE